Key points
- The opponent produced sufficient evidence in 2015 of a web publication in 2006 (before the priority date) by a combination of web.archive.org print screens (showing a link to a PDF file) and an affidavit from an author stating that the PDF wile was published in 2005 and was never changed.
- " According to the affidavit S19 by [Mr. H], founder of [H] Ultrasonic LLC and author of document S13, document S13 was added in December 2005 to his website, thus publicly available from that moment on. Further, according to his affidavit, no changes were made to document S13 after December 2005."
- " there is no reason to believe that the author of document S13 in his affidavit is not telling the truth. He appears to be an independent person who does not seem to have any business, economic or other relationship with any of the parties involved in the proceedings. Nor did the appellant contest the validity of the affidavit. There is also no convincing reason not to believe the author's statement in his affidavit that document S13 is unchanged since December 2005.
- " Secondly, the probability that the Internet links functioned correctly is estimated to be higher than the opposite. There is no reason to provide Internet links which do not function. The probability that the Internet links worked correctly, but that the wayback machine "web.archive.org" in its random crawls did not arrive at the lowest hierarchical page S18 earlier than 2 May 2006, is estimated to be higher than the opposite. Given the affidavit, it also seems unlikely that a version published in December 2005 had different content from document S13."
3. Public availability of document S13
3.1 Document S13 is an article from the company "Hessonic" titled "Fundamentals of Ultrasonic Cleaning" which does not show any publication date on the publication itself. It was submitted by the respondent with the notice of opposition citing 1 December 2005 as publication date.
3.2 The appellant objected that document S13 was part of the state of the art according to Article 54(2) EPC in the statement setting out the grounds of appeal indicating that the wayback machine "web.archive.org" archived this document for the first time only on 2 May 2006 (see document S18).
3.3 With their reply to the statement setting out the grounds of appeal, the respondent filed documents S19 to S21 in order to provide further evidence for their allegation that document S13 was part of the state of the art according to Article 54(2) EPC 1973.
3.4 Three screenshots from the wayback machine "web.archive.org" of three different Internet pages submitted as documents S18, S20 and S21, all linked to document S13, show different archiving dates. These three Internet pages are related to each other as follows:
The screenshot shown in document S20, which was archived on 1 December 2005, i.e. before the priority date of the impugned patent (17 March 2006), shows the website of the company "Hessonic" on which a link to a document "Fundamentals of Ultrasonic Cleaning" is shown, i.e. to a document with the same title as document S13.
If one follows this link (in the lower part of the left-hand column shown in document S20), one arrives at the screenshot shown in document S21, which was archived on 8 February 2006, i.e. also before the priority date of the impugned patent, showing a document's cover page which is identical to that of document S13.
If one follows this cover page shown in document S21 to call up the article stored behind it, one actually arrives at document S13. This Internet page was archived on 2 May 2006, as screenshot S18 shows, i.e. after the priority date of the impugned patent.
3.5 It is known that the wayback machine "web.archive.org" randomly crawls the Internet, without necessarily accessing each and every web page, and archives crawled web pages using the date and time when the web page was crawled. The archiving dates of the wayback machine "web.archive.org" thus do not indicate the earliest date of public availability, but a date for which the public availability can be more or less safely assumed. However, this does not exclude an earlier publication date.
3.6 In the present case, when crawling the Internet, the wayback machine "web.archive.org" has recognised and archived the Internet pages S20 and S21 prior to the priority date of the impugned patent. The Internet page shown by document S18, being the lowest page from a hierarchical point of view, was only archived later on 2 May 2006.
3.7 The indicated archiving date of 2 May 2006 does however not exclude that document S13 was already publicly available by the links shown in documents S20 and S21 in December 2005. In particular, since the wayback machine "web.archive.org" crawls the Internet randomly, it can be assumed that the crawling of the wayback machine "web.archive.org", due to its randomness, accesses subordinate pages of lower hierarchy less frequently than it does higher level pages. This could explain a publication date of S13 in December 2005 (as shown in document S20) without being in contradiction to the archiving date of 2 May 2006 as shown by document S18. In any case, from a purely technically point of view, document S13 could well have been available when the pages S20 and S21 were archived.
3.8 However, it is also possible that document S13 was either not accessible at all via the links of the Internet pages shown by S20 and S21 or at least not in the version of the present document S13. Therefore, the combination of documents S18, S20 and S21 provide a proof that document S13 was publicly available as of 2 May 2006, but are neither a proof nor a rebuttal of a publication date of 1 December 2005.
3.9 According to the affidavit S19 by [H], founder of [H] Ultrasonic LLC and author of document S13, document S13 was added in December 2005 to his website, thus publicly available from that moment on. Further, according to his affidavit, no changes were made to document S13 after December 2005.
3.10 Since the public availability of document S13 in December 2005 is disputed and there is no other documentary proof of this public availability, the Board had to assess the available evidence and decide the matter. According to established case law of the Board of Appeal (see Case Law of the Boards of Appeal, 9th Edition, 2019, I.C.3.2.3), the standard of proof for a decision on the publication date of S13 should be the balance of probabilities.
3.11 The Board evaluates the question whether document S13 was publicly available in December 2005, i.e. prior to the priority date of the impugned patent, as follows.
Firstly, there is no reason to believe that the author of document S13 in his affidavit is not telling the truth. He appears to be an independent person who does not seem to have any business, economic or other relationship with any of the parties involved in the proceedings. Nor did the appellant contest the validity of the affidavit.
There is also no convincing reason not to believe the author's statement in his affidavit that document S13 is unchanged since December 2005.
Secondly, the probability that the Internet links functioned correctly is estimated to be higher than the opposite. There is no reason to provide Internet links which do not function. The probability that the Internet links worked correctly, but that the wayback machine "web.archive.org" in its random crawls did not arrive at the lowest hierarchical page S18 earlier than 2 May 2006, is estimated to be higher than the opposite. Given the affidavit, it also seems unlikely that a version published in December 2005 had different content from document S13.
Moreover, it is considered unlikely that an Internet link to a document is indicated but leads nowhere. Even if this was the case, the interested reader could have contacted the author directly to ask for document S13 that was displayed on the Internet pages as of December 2005 and which, according to the author's affidavit, was publicly available at that time in its present version.
Consequently, in the light of all the above considerations, the Board concludes that the likelihood that document S13 was publicly available in December 2005 is far greater than the opposite.
3.12 Therefore, the Board concludes that document S13 is part of the state of the art according to Article 54(2) EPC 1973.
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